Thursday, June 7, 2012

Search Engine Results As Source, and DMCA Safe Harbor

Pinterest has to be aware that nearly anything pinned from Google Image search is improperly attributed, and quite likely infringing material.

In general, to avail itself of a safe harbor protection, a service provider must show:

it did not have actual knowledge of the infringing material on its system;

if it did not have actual knowledge, it was also unaware of facts or circumstances from which the infringing activity to would be apparent; or

that upon obtaining such knowledge or awareness it acts expeditiously to remove or disable the materials.

How proactive must a service be in order to be protected by the sage harbor provision? The answer may be not a whole lot.

Source: LexologyUMG argued that Veoh had the right and ability to control infringing activity and thus could not take advantage of the safe harbor protection. The Ninth Circuit rejected this argument finding that Veoh only had the necessary right and ability to control infringing activity once it had been notified of such activity. The Ninth Circuit found that merely knowing that a website can host infringing material did not satisfy the specific knowledge requirement to impose liability. Thus, the Ninth Circuit held that “the ‘right and ability to control’ under section 512(c) [of the DMCA] requires control over specific infringing activity the provider knows about” and “a service provider’s general right and ability to remove materials from its services is alone insufficient.”

The Ninth Circuit’s decision in UMG Recordings provides further clarification about the safe harbor provisions of the DMCA. Service providers are encouraged to be proactive in identifying and removing infringing material upon receipt of notice that such materials exist. Such policies can help shield a service provider from liability under the DMCA’s safe harbor provisions.

If the requirement for a service like Veoh (and by extension, Pinterest) to be proactive in the removal of infringing material is limited to the time following receipt of notice, this means that creative content providers are defenseless against the army of pinners, and will have to consecrate hours upon hours of their time protecting their copyright while Ben Silbermann becomes extraordinarily rich with venture capital.

This leaves us with the option of concealing our content behind tiny thumbnails, ending its distribution on the internet altogether, or trying to educate pinners to curb their infringing activity.